Court clarifies employees’ FMLA obligation

The Seventh Circuit Court of Appeals gets its cases from the Eastern and Western districts of Wisconsin, in addition to districts in Illinois and Indiana. The court recently affirmed a lower court’s summary judgment in favor of an employer in a Family and Medical Leave Act and Americans with Disabilities Act dispute.

The decision makes it clear that employees have a critical obligation in FMLA matters. It’s crucial for workers who need leave to attend to a serious health condition that they give notice of the condition to their employer.

The court’s ruling is understood to mean that sporadic or ambiguous attendance at your job will not be considered evidence that you have a health issue requiring treatment. Irregular attendance is not considered notice of a health problem.

In this case, a woman who worked for Brown County (about two hours north of Milwaukee) had sleep apnea that was treated with a CPAP machine. According to a recent article, “it was unclear if her employer was aware of the sleep apnea diagnosis or CPAP machine treatment.”

She apparently had repeated problems with tardiness at work; an issue for which she was disciplined and warned. She was eventually given a three-day suspension and told that if she was again tardy, she could be fired.

After she was again late for work, she was terminated by the county. The day she was fired, she got a medical note explaining that her tardiness was due to sleep apnea.

The Seventh Circuit’s decision is plain: if you get an after-the-fact request for FMLA leave, you have waited too long. An employer’s decision to fire you that was made before the request was tendered is lawful.

However, the court did leave open some room for “stark and abrupt” changes in employee behavior that might be notice that serious health conditions exist and that FMLA applies.

It’s important to notify your employer of the serious condition requiring FMLA leave. If you have notified your employer and been denied FMLA benefits or suffered retaliation after taking leave, contact an employment law attorney who can protect your rights and career.


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